This paper discusses the major factors that appear to influence how clients and lawyers come together, and what role professional advertising might play in this process. The context for the discussion is the traditional model of appropriate lawyer-client relations, which is an ideal built into the code of professional conduct. The model presumes a lawyer's professional reputation, and the maintenance of professional standards by the bar. In the real world, conditions of legal practice and problem defining by consumers cause departure from the ideal. A number of factors influence how clients come to perceive problems as amenable to legal assistance. These are certain psychological, cultural, and social attributes whose operation in law is less well understood than it is in medicine. In addition, there are certain structural factors that influence the link between prospective clients and lawyers. Prominent among these is the fact that legal services comprise an imperfect market due to uncertainty of case outcome and difficulties of information procurement. It is suggested that consumers are reasonably rational in their search for lawyers given these problems. Consumers rely heavily upon informal contact networks and influential intermediaries, a process not unlike searching for a job or a doctor. The implications of these findings for opening up information channels through relaxation of the ban on advertising are discussed.

Social scientists have offered numerous explanations for the support the public accords to the United States Supreme Court. Easton and Dennis have advanced the contention that such support is at least in part the product of youthful idealization of the Court, and this hypothesis has gained widespread, if tacit, acceptance. This paper argues that their conclusion is largely the consequence of a methodological artifact (the use of fixed-response survey instruments), and offers evidence that most children are not only unaware of the Supreme Court and its functions but demonstrate little or no positive affect toward that institution. If this is so, then why has the Easton-Dennis explanation persisted, despite its implausibility and lack of empirical grounding? One possibility is that the notion of a reservoir of trust in the Supreme Court is a useful rhetorical weapon for both judicial activists and those who advocate judicial restraint. But if public perceptions and evaluations of the Court are not strongly held, we must face the danger that those views will be susceptible to manipulation by people who do know and care about it—political, social, and economic elites.

The experiences of 798 burglary and larceny defendants in the criminal courts of Mecklenburg County, North Carolina, in 1971 were studied to identify the factors having the greatest influence on the defendant's likelihood of emerging from court with an active prison sentence. The following variables were found to have a significant effect, listed in order of importance: (1) severity of offense (defined in terms of value of property taken and degree of skill required)—positive effect; (2) defendant's income—negative effect; (3) prior arrest record—positive effect; (4) strength of case against defendant as determined by promptness of arrest—positive effect. The influence of the defendant's sex could not be measured because there were too few females in the sample. Race, age, and employment were found to be of little or no importance. The four most important variables had a generally additive effect on prison probability.

Further analysis showed that the defendant's income affected not whether he was convicted of an offense, but the likelihood of going to prison after conviction. Most of this effect could be explained by the low-income defendant's poorer opportunity for pretrial release and greater likelihood of having a court-appointed rather than privately retained attorney. This suggests that the apparent disadvantage of the low-income defendant could be overcome by improvement of pretrial release and defense service.

The study's implications with regard to sentencing procedures are discussed. Judges' wide latitude in imposing sentence may enable the defendant's income to exert the large influence that it apparently does, but narrowing judicial discretion may not reduce the effect of income if present plea bargaining practices continue.

Studies in nations with different social and economic systems indicate that the norms of contract law are seldom applied through the litigation process and that disputes are avoided or settled where there is a long-term relationship between the parties. Yet legal scholarship, as well as many proposals for reform, continue to be based on a picture of the contracts lawsuit, to a great extent. It is likely that this distortion is prompted by overgeneralization from a nonrepresentative sample of possible and actual disputes, and by the indirect influence of legal norms; it may also express the needs of legal scholars and reformers. It is questionable whether capitalist, socialist, or mixed economic systems would benefit if more disputes were resolved by the application of officially sanctioned contract norms.

Court proceedings and records were analyzed to evaluate statutory reform of mental commitment procedure in one state with a typical statute. A marked improvement over practice described in previous research was found: court proceedings were not rapid and perfunctory. However, the court still often deferred to psychiatric opinion even when a preponderance of evidence showed it to be unsubstantiated.

We reach, then, not a simple conclusion (law = class power) but a complex and contradictory one. On the one hand, it is true that the law did mediate class relations to the advantage of the rulers; not only is this so, but … the law became a superb instrument by which these rulers were able to impose new definitions of property to their even greater advantage. … On the other hand, the law mediated these class relations through legal forms, which imposed, again and again, inhibitions upon the actions of the rulers. [Thompson, 1975:264]

As always in social life, the heart of the mystery lies in the relationship between the struggle for power and the beliefs people hold about what is good for them and what they are capable of achieving. That relationship is the cave into which we must follow the enigma. [Unger, 1976b:242]

This paper visualizes legal services as one of various alternative paths to delivering legality (i.e., the benefits which access to law confers upon actors). It challenges the assumption that deficiencies in access to law can be most effectively remedied by providing the services of lawyers. It suggests that in some cases there are excessive costs of delivering legality through the medium of legal services and that in other cases legal services are insufficient without some admixture of other factors. Among the alternatives considered are (a) modification of rules systems (e.g., no-fault schemes, simplified transactions); (b) modification of institutions for applying rules (e.g., departures from the court model by making institutions simple, mediative, proactive, private, etc.); (c) enhancement of the capabilities of the parties (personal competence, organizational capacity to utilize legal services, etc.). It is argued that lack of capability of parties poses the most fundamental barrier to access and that upgrading of party capability holds the greatest promise for promoting access to legality. Evidence is adduced for the proposition that organizational structure is a key factor in determining the ability of parties to utilize the legal system. Alternative ways in which various interests can attain the benefits of organization are considered. Finally, research possibilities associated with these themes are sketched.

The two articles that follow contribute to the mapping of dispute behavior in contemporary society. Hannigan (1977) describes how a newpaper action line, or ombudsman, handles consumer disputes. Best and Andreasen (1977) report the findings of their survey of consumer experiences and what consumers did about the problems they encountered. These essays represent complementary approaches to the study of how people and institutions respond to common consumer disputes. I will begin by indicating where they fit into the evolving tradition of sociolegal research and how they add to our still redimentary understanding of dispute behavior.

Class struggle shapes every aspect of the law. In Buffalo, New York, the railroad strikes of 1892 and 1894, coupled with a major depression, heightened the level of class conflict. Hundreds of thousands of American workers had “taken to the road,” both as a form of political protest and to look for work. When one of these “tramp armies” reached Buffalo, it was greeted by a show of working class solidarity among the Polish immigrant community, and by massive police repression under the control of the bourgeoisie. This paper analyzes the economic, political, and social context of those events.

Research concerning racial discrimination within the criminal justice system has focused largely upon the police and the courts. There is reason to believe, however, that differential treatment may be more common in less visible proceedings. This research addresses that possibility through an examination of the cases of 243 prisoners who appeared before a parole board from October 1, 1970, through September 30, 1971. There is no evidence of direct racial discrimination. There is evidence, however, that the board differentiated between black and white prisoners in selecting and weighting information when deciding parole. Compared to white prisoners, black prisoners had an additional criterion to meet in order to be paroled—participation in institutional treatment programs. The imposition of this additional criterion indirectly resulted in racial inequities. Black parolees who were treatment participants served a significantly longer portion of their sentence than did white treatment participants. The few black prisoners who were paroled without participating in treatment served a shorter proportion of their sentence than other prisoners. These few black prisoners were older, more likely to be property offenders and had slightly more prior convictions than black treatment participants. These findings are interpreted as indicating a bias against racial militancy.

This study examines the factors that determine the probability that a very common form of deviant behavior, shoplifting, will be detected, reported, and sanctioned. Data obtained both from self-reported crime, and from experiments in which researchers actually shoplifted goods from supermarkets and department stores with the authorization of their executive officers but without the knowledge of store employees, indicate that enforcement of the norm is highly selective. Less than 10 percent of all shoplifting is detected, and customers appear unwilling to report even flagrant cases. Even with an announced policy of full reporting and prosecution, only 70 percent of the shoplifting detected is reported, and only 55 percent is sanctioned. Foreigners, adults, and blue-collar workers are disproportionately represented among those sanctioned.

These findings challenge the common assumption that norms backed by legal sanctions are highly effective. One reason may be that the division of labor between stores, which detect, and police and prosecutor, who sanction, completes the differentiation of moral and legal norms, subverting the effectiveness of both. The results also highlight the misleading nature of criminal statistics, which purport to measure crime but in fact describe the behavior of detecting and enforcing agencies.

The traditional emphasis on individual legal problems and their solution through “access” to legal services is seen here as being inadequate to produce general change in economic and political institutions. The concept of access is explored in the forms of freedom of information, prepaid legal services, and extralegal group action; examples of each are given.

Institutional reform, it is suggested, can be brought about by creating a balance of power between consumers and large institutions. A “checkoff” system is described and put forward as a means of organizing consumers to use the evidence of individual complaints to advocate institutional change, something that legal services, as presently structured, do not do. Monopolies such as the utilities and the post office would be required by state law to solicit voluntary contributions from their customers to support a consumer action movement—“a piggyback ride so they can organize themselves.”

The interrelationships between group legal services and these piggyback consumer groups are pointed out: the accumulation of individual case evidence and the promotion of cooperative institutions that would provide legal representation as one of their satellite services. These lawyers could press for government reform of procedural restraints on consumer class actions.

Possible conflicting interests between conservative sponsoring consumer groups and their progressive legal service staff are recognized and ways to avoid them are discussed. One solution offered is to permit lawyers a broader range of activities by relaxing the legal profession's self-restrictions. Law schools are urged to reevaluate what they should teach and to require more analysis and investigation of government and corporate structures in their clinical education. This would ensure a starting point for the continuation of reform in the legal system.

After a good deal of thought I have decided not to respond directly to Professor Trubek's exhaustive review of The Dialectics of Legal Repression, but will rather leave it to readers of my book to determine for themselves the adequacy of his description, analysis, and evaluation of the material contained therein. However, insofar as Professor Trubek also refers briefly in his essay to my “more recent,” and until now unpublished, work, it seems appropriate to present a sample of this work, especially since Trubek himself argues that it entails a “major refinement” which “allows Balbus to explain what remains unexplained in The Dialectics.” Indeed, in certain respects the following essay constitutes an autocritique of the theoretical analysis in my book, and a comparison of the two will thus permit the reader to assess indirectly the extent of my agreement with Trubek's critique. At the same time, what follows also constitutes an implicit and, at times explicit, critique of Trubek's own effort to elaborate and apply an alternative to my position, the effort he calls “critical social thought about law.”

This paper reports the results of a survey of 282 clients of Sound Off, a Canadian newspaper ombudsman. The data suggest that the newspaper ombudsman works best as a communication “facilitator” but is less effective as a dispute “mediator.” Furthermore, this service was found to be of least benefit to the socially advantaged who appear to use it to pursue more difficult problems. Nevertheless, 73 percent of the respondents indicated that they would use this “action line” service again if the need arose.

The title states the article's subject: the problems and possibilities of evaluating the competence of lawyers. It attempts to: (1) survey what has been written about the subject, commenting on the strengths and limitations of alternative approaches; (2) suggest those activities of lawyers which most influence the effectiveness of their performance and what competence means as to them; (3) indicate what are the principal problems inhibiting better performance evaluations and some ways to try to deal with these problems; and (4) propose some research tasks which may improve our capability as systematic and relatively objective evaluators.

The literature exhibits approximately five approaches to evaluating lawyer competence. Two are indirect: (1) measurement of competence by a lawyer's training and/or his or her performance on a certification examination and (2) assessment based upon a lawyer's status or reputation. These approaches are of limited value where, as in most present instances, there is no proven relationship between such measures and actual competent performance. The other three approaches focus on performance. The first judges performance in terms of successful and unsuccessful outcomes in advocacy. The second judges performance in terms of the avoidance of negligence. The third involves a more systematic and detailed evaluation of the ways lawyers carry out certain activities central to the services they offer. The article suggests how this last approach can be most effectively developed. In spite of the formidable problems raised by attempts to evaluate lawyers, the author is optimistic that such evaluation is possible and can be productive.

A survey of consumer reactions to common purchases was conducted in 1975. Consumers perceive problems with many products and services, and voice complaints concerning about one-third of those problems. Third-party complaint processors play a very small role in buyer-seller disputes. Household status and type of problem influence perception of problems and choice of action or inaction. Satisfactory resolutions occur in somewhat more than half of voiced complaint cases. To increase voicing and fair handling of complaints, procedural changes at the buyer-seller level are suggested; to improve treatment of complaints that are not resolved at the buyer-seller level, improvements in community small claims courts are suggested.

This paper analyzes the role of local political leaders in channeling the impact of national development programs on the processes of dispute handling in Zinacantan, a Maya Indian community in the highlands of Chiapas, Mexico. Although the development programs have caused individual Zinacantecos to become more aware of the benefits they might obtain by appealing to remedy agents outside of the Indian community, few cases are taken to Mexican authorities because Indian leaders, who have a vested interest in handling the disputes of constituents, have sought to preserve the popularity of traditional conciliatory procedures by altering the types of settlements they suggest to disputants. As a result, traditional conciliatory procedures are flourishing, but the substance of the settlements reached through such procedures has begun to change toward conformity with codified state and national laws where those laws conflict with traditional Indian custom.

We noted with considerable interest Leon Robertson's article (1976), in a recent issue of this journal, dealing with statistical measures of the effectiveness of helmet and daytime headlight laws for motorcyclists. For some time, proponents and opponents of such legislation have been trading enthusiastic arguments and impassioned denials, often including misleading statistical presentations. The result has been that most followers of this debate are left with their personal views and little in the way of substantive support for either side. Robertson uses what appear to be promising data bearing on the safety controversy but, in our view, he does not perform the analyses required to clear the muddled waters and he seriously misinterprets the statistics he employs.